CILRAP » Case Matrix Network » CMN Knowledge Hub » Means of Proof Digest » Art. 8 War crimes » Art. 8(2)(a) War crimes » Art. 8(2)(a)(iv) Destruction and appropriation » 7. The destruction or appropriation was extensive and carried out wantonly.

Element:

7. The destruction or appropriation was extensive and carried out wantonly.

7.1. The destruction or appropriation was extensive; AND

7.1.1. Evidence that the destruction was extensive.

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaskic, Case No. It-95-14-T3, Judgement (TC),3 March 2000, para. 157:

"157. To constitute a grave breach, the destruction unjustified by military necessity must be extensive, unlawful and wanton. The notion of "extensive" is evaluated according to the facts of the case[].^"

Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2005), p. 83:

"The amount of unlawful destruction must be extensive for it to amount to an international crime."

P.33. Evidence that the destruction occurred on a large scale.

Prosecutor v. Ljube Bokoski et. al., Case No. IT-04-82-T, Judgement (TC), 10 July 2008, para. 352:

"352. The first element that the destruction occurred on a "large scale" requires that a considerable number of objects were damaged or destroyed. However, it does not require destruction in its entirety of a city, town or village.1425 The Trial Chamber in the Hadihasanović case held that the requirement is met when either a large quantity of property has been destroyed or when the value of a single object is sufficiently great.1426 Partial destruction of property may be considered to be sufficient, as long as acts of partial destruction are committed on a large scale.1427"

1425 See e.g. Naletilić Trial Judgement, paras 584, 596. See also Strugar Trial Judgement, para 294; Orić Trial Judgement, para 585; Martić Trial Judgement, para 92.

1426 Hadihasanović Trial Judgement, para 43.

1427 Hadihasanović Trial Judgement, para 44.

A. Legal source/authority and evidence:

Prosecutor v. Enver Hadihasanović and Amir Kubura, Case No. IT-01-47-T, Judgement (TC), 15 March 2006, para. 1845:

"1845. The Chamber considers that the acts of destruction were on a large scale. The extent of the destruction was noted in particular by Witness Hakan Birger, according to whom practically all of the shops had shattered windows. The Chamber therefore considers that the damage caused reached the necessary threshold to be considered acts of destruction committed on a large scale."

Prosecutor v Milan Martić, Case No. IT-95-11-T, Judgement (TC), 12 June 2007, para. 360:

360. The Trial Chamber finds that on 13, 21 and 24 September 1991, armed Serbs from ?ivaja under the command of Nikola Begović burnt 10 houses in Cerovljani. The Trial Chamber finds that in a small village of some 500 people, the destruction of 10 houses must be regarded as destruction on a large scale.

Prosecutor v. Naser Orić, Case No. IT-03-68-T, Judgement (TC), 30 June 2006, para. 642-643 and 669 670::

"642. By 6 October 1992, at least 16 of the 30-plus houses of Fakovići were burned. In Divovići, there is evidence that two to four houses out of the 11 houses of the hamlet, as well as a storage facility and two barns, were destroyed.

(b) Legal Findings

643. Based on the evidence presented, the Trial Chamber is not satisfied that property was destroyed on a large scale in Divovići on 5 October 1992. However, the Trial Chamber finds that property was destroyed on a large scale in Fakovići on 5 October 1992."

"669. As to the extent of destruction caused to Jeestica, Kravica and ?iljkovići, the Trial Chamber finds the following. In Jeestica, on 7 January 1993, more than 60 houses1904 were burned.1905 In Kajici, a hamlet of Kravica, six houses out of 15 were burned on 7 January 1993.1906 By 8 January 1993, an indeterminate number of houses in Kravica were burned.1907 According to one witness, on 12 January 1993, the extent of destruction in Kravica was "roughly about 50 per cent." Witnesses arriving in the Kravica area by mid-March 1993 found most of the houses and out-buildings burned down.1909 There was no evidence presented with respect to the extent of destruction caused to ?iljkovići.

(b) Legal Findings

670. Based on the evidence presented, the Trial Chamber is satisfied that property was destroyed on a large scale in Kravica and Jeestica on 7 and 8 January 1993. However, in regard to ?iljkovići there is no sufficient evidence to establish that destruction on a large scale occurred there."

1905 Milo Ranković, T. 1102, 1110-1116. This estimation seems to include six houses that were burned in Polja: Miladin Simić, T. 852, 854. The Trial Chamber notes that photos taken in August 1994 reveal that most of the houses of Jeestica were burned down: ex. P365, "Map and photos"; Milo Ranković, T. 111-1116; Miladin Simić, T. 857-871; Dragomir Miladinović, T. 2999-3007; Dragan Janković, T. 4728-4729, 4672, 4694, 4698-4699. However, they cannot be perceived as an accurate representation of the degree of destruction that occurred on 7 and 8 January 1993.

1906 Miladin Simić, T. 853.

1907 Milosava Nikolić, T. 7129, 7142, 7185-7187, 7191-7193. The Trial Chamber is not persuaded by evidence given by Hamed Tiro, T. 10392-10393, that on 8 January 1993, only two houses in Kravica were burned down, while others were damaged from shooting and shelling, and, by Sabra Kolenović, T. 10110, that on 11 or 12 January 1993 only 3 to 4 houses in Kravica were burned down.

1908 Ratko Nikolić, T. 2593-2594. See also ex. P448, "Video" of 23 January 1993; Slavia Erić, T. 3094, 3096-3098, 3100-3107, stating that an undetermined number of houses in Kravica were damaged by fire.

1909 Miladin Simić, T. 853-855, 859-864, 868-870; Slavia Erić, T. 1213-1214, 1259, 3113; Dragomir Miladinović, T. 2990-2992, 2999-3007, 3052-3053. See also Nikola Popović, T. 2903. But see Slavia Erić, T. 1215-1221, 3107, stating that between January and March 1993, "some houses were destroyed a little more [] but it was more or less in this state" and that the destruction depicted in the visual evidence shown to him was an accurate representation of events as they occurred on 7 and 8 January 1993. The Trial Chamber further notes that this visual evidence showing destruction in Kravica was taken at a significantly later stage than the actual attack, and therefore cannot be perceived as an accurate representation of the degree of destruction that occurred on 7 and 8 January 1993: ex. P365.2, "Photographs"; ex. P400, "Photograph"; ex. P463, "Photograph"; Dragan Janković, T. 4728-4729, 4672, 4694, 4698-4699. See also ex. P488, "Map showing facilities torched and destroyed in war activities between 1992 and 1993" of September 1994; Nikola Popović, T. 2829-2830; Sabra Kolenović, T. 10109, stating that ex. P400, "Photograph" does not reflect the condition of the school building in Kravica as it was on 8 January 1993.

Prosecutor v. Ljube Bokoski et. al., Case No. IT-04-82-T, Judgement (TC), 10 July 2008, para. 380:

"380. The Chamber finds that on 12 August 2001, the houses of Alim Duraki, Agim Jusufi, Qenan Jusufi, Sabit Jusufi, Xhevxhet Jusufovski, Abdullah Luftiu, Harun Red`epi (Rexhepi), Ismet Rexhepi (Rexhepovski), Nazim Murtezani, Qani Jashari, Afet Jashari and Ramush Jashari were damaged as a result of being set on fire by the police advancing through the village of Ljuboten. The Chamber further finds that at least the houses of Sabit Jusufi, Qenan Jusufi, Agim Jusufi, Ismet Rexhepovski (Red`epi, Rexhepi), Harun Red`epi (Rexhepi), Qani Jashari, Afet Jashari, and Ramush Jashari were set on fire using gasoline or other incendiary material. Some of these houses also suffered damage caused by police gunfire. In the case of the houses of Qani Jashari, Afet Jashari and Ramush Jashari some damage may also have been caused by army gunfire, but not by mortar or cannon shells. Given the size of the village of Ljuboten, the number of damaged houses may be properly seen as considerable, sufficient, in the Chambers view, to constitute damage on a "large scale" in the relevant sense. In none of these cases was damage justified by military necessity, except possibly for some firearm damage to the houses of the Jashari family. The circumstances demonstrated by the evidence establish, in the Chambers finding, that in each case the police acted with intent to destroy the property to which they set fire. It follows that the crime of wanton destruction, charged in Count 2, is established."

Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, paras. 466, 557-558:

"466. In the absence of evidence as to the scale of the destruction and as to the lack of military justification, the Appeals Chamber finds that no reasonable Trial Chamber could have concluded that destruction not justified by military necessity occurred in Vitez/Stari Vitez in April 1993."

"557. The Trial Chamber found that Gomionica was shelled by the HVO⁷⁷³ and that HVO soldiers later set houses on fire, destroying 131 of its 159 houses along with the Mekteb and the Turbe⁷⁷⁴. Witness TW04 (based on transcripts from the Blaskic trial) testified that the burnings were committed in order to "destroy any proof of plundering".⁷⁷⁵ The witness further testified that no damage was done to the Catholic Church or to Croat homes and buildings.⁷⁷⁶"

"558. The Appeals Chamber thus finds that the destruction of property occurred on a large scale and was targeted against Muslims houses, while houses of Croats were not destroyed; therefore a reasonable trier of fact could have found that the destruction was not justified by military necessity and that the perpetrators acted with the intent to destroy the property in question. The Appeals Chamber upholds the Trial Chambers finding that wanton destruction not justified by military necessity was established in Gominonica, Count 38 (Kordic)."

"⁷⁷³. Trial Judgement, para. 665.
⁷⁷⁴. Trial Judgement, para. 806.
⁷⁷⁵. Blaskic, T. 9271.
⁷⁷⁶. Blaskic, T. 9273."

Prosecutor v. Tihomir Blaskic, Case No. It-95-14-T3, Judgement (TC), 3 March 2000, para. 418:

"418. According to the Centre for Human Rights in Zenica, 180 of the existing 200 Muslim houses in Ahmici were burned during the attack ⁸⁶⁰ . []. Prosecution exhibit P117 also showed that nearly all the Muslim houses had been torched, whereas all the Croat houses had been spared ⁸⁶² . [] According to the ECMM observer Morsink, practically all the Muslim houses in the villages of Ahmici, Nadioci , Pirici, Sivrino Selo, Gacice, Gomionica, Gromiljak and Rotilj had been burned ⁸⁶⁷ . He stated that the houses had all been set alight with petrol and oil ⁸⁶⁸ . Likewise, according to the witness Watters, the Muslim houses had been systematically burned in Nadioci, Ahmici and ?antici ⁸⁶⁹ . The witness Baggesen, ECMM observer, reported that "it was a whole area that was burning" ⁸⁷⁰ . The report of the Joint Busovaca Commission, dated 21 April, showed that the ICRC had made enquiries that afternoon in Ahmici and noted that all the Muslims situated in Ahmici-west had left and that 90% of the houses together with the area's mosque, had been destroyed ⁸⁷¹ . The report stated moreover that about 200 Muslim women and children were crowded into 3 houses in Novaci, and that half of them wished to be evacuated ⁸⁷² ."

"⁸⁶⁰ P242, "Report on inter-ethnic violence in Vitez, Busovaca and Zenica in April 1993", Annex N to ECMM H/S 720, 15 May 1993. Meeting with the Centre for Human Rights in Zenica, p. N-2.

⁸⁶² - Witnesses Abdullah Ahmic, PT p. 3768; M, PT p. 4410; Elvir Ahmic, PT p. 3255-3256.

⁸⁶⁷ Witness Morsink, PT pp. 9900-9901.

⁸⁶⁸ Witness Morsink, PT pp. 9901-9902.

⁸⁶⁹ Witness Watters, PT pp. 3602-3605.

⁸⁷⁰ Witness Baggesen, PT of 22 August 1997 p. 1928.

⁸⁷¹ This information appears also in the report of the ECMM whose team accompanied the ICRC team. P242, "Report on inter-ethnic violence in Vitez, Busovaca and Zenica in April 1993", Annex N to ECMM H/S 720, 15 May 1993. Events reported by ECMM and UN, 13-30 April 1993, Annex R to ECMM H/S 720, 15 May 1993, p. R-7.

⁸⁷² P696: report of the Joint Busovaca Commission dated 21 April (witness Morsink), para. D."

P.34. Evidence of a policy of systematic destruction based on ethnicity.

A. Legal source/authority and evidence:

Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, paras. 557-558:

"⁷⁷³. Trial Judgement, para. 665.
⁷⁷⁴. Trial Judgement, para. 806.
⁷⁷⁵. Blaskic, T. 9271.
⁷⁷⁶. Blaskic, T. 9273."

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 600:

"600. The Trial Chamber is satisfied that in the period relevant to the Indictment, Bosnian Serb forces shelled towns and villages predominantly inhabited by Bosnian Muslims and Bosnian Croats, causing extensive damage to houses and business premises. After the shelling, the Bosnian Serb forces entered the towns and villages, looting and setting on fire apartments, houses and business premises belonging to Bosnian Muslims and Bosnian Croats. The Trial Chamber finds that the purpose of such attacks was to create terror, destroy these properties, cities, towns and villages and prompt non-Serbs to abandon their houses, viallges or towns and leave permanently."

Prosecutor v. Tihomir Blaskic, Case No. It-95-14-T3, Judgement (TC), 3 March 2000, paras. 418, 425-426:

"418. According to the Centre for Human Rights in Zenica, 180 of the existing 200 Muslim houses in Ahmici were burned during the attack ⁸⁶⁰ . The Commission on Human Rights made the same finding in its report dated 19 May 1993 ⁸⁶¹ . Prosecution exhibit P117 also showed that nearly all the Muslim houses had been torched, whereas all the Croat houses had been spared ⁸⁶² . The witnesses Bower ⁸⁶³ and Casim Ahmic ⁸⁶⁴ confirmed the information . The witness Nura Pezer stated, on this point, that the day before the attack, she had seen a Croat from the village, named Ivica Vidovic, who, in the presence of another man, was pointing out the Croat houses and the Muslim houses ⁸⁶⁵ . The British UNPROFOR battalion reported having seen houses burning in ?antici on 17 April ⁸⁶⁶ . According to the ECMM observer Morsink, practically all the Muslim houses in the villages of Ahmici, Nadioci , Pirici, Sivrino Selo, Gacice, Gomionica, Gromiljak and Rotilj had been burned ⁸⁶⁷ . He stated that the houses had all been set alight with petrol and oil ⁸⁶⁸ . Likewise, according to the witness Watters, the Muslim houses had been systematically burned in Nadioci, Ahmici and ?antici ⁸⁶⁹ . The witness Baggesen, ECMM observer, reported that "it was a whole area that was burning" ⁸⁷⁰ . The report of the Joint Busovaca Commission, dated 21 April, showed that the ICRC had made enquiries that afternoon in Ahmici and noted that all the Muslims situated in Ahmici-west had left and that 90% of the houses together with the area's mosque, had been destroyed ⁸⁷¹ . The report stated moreover that about 200 Muslim women and children were crowded into 3 houses in Novaci, and that half of them wished to be evacuated ⁸⁷² ."

"⁸⁶⁰ P242, "Report on inter-ethnic violence in Vitez, Busovaca and Zenica in April 1993", Annex N to ECMM H/S 720, 15 May 1993. Meeting with the Centre for Human Rights in Zenica, p. N-2.

⁸⁶¹ P184, p. 5, para. 20.

⁸⁶² - Witnesses Abdullah Ahmic, PT p. 3768; M, PT p. 4410; Elvir Ahmic, PT p. 3255-3256.

⁸⁶³ This witness, a member of the Prince of Wales Regiment in Bosnia Herzegovina (2nd British Battalion which succeeded the Cheshire Regiment), who remained in the area from April to November 1993, stated that some houses, where Croats lived, remained intact. PT p. 9361.

⁸⁶⁴ PT of 1 October 1997 p. 3136.

⁸⁶⁵ Witness Nura Pezer, PT pp. 3883-3884.

⁸⁶⁶ P242, "Report on inter-ethnic violence in Vitez, Busovaca and Zenica in April 1993", Annex N to ECMM H/S 720, 15 May 1993. Events reported by ECMM and UN, 13-30 April 1993, Annex R to ECMM H/S 720, 15 May 1993, p. R-3.

⁸⁶⁷ Witness Morsink, PT pp. 9900-9901.

⁸⁶⁸ Witness Morsink, PT pp. 9901-9902.

⁸⁶⁹ Witness Watters, PT pp. 3602-3605.

⁸⁷⁰ Witness Baggesen, PT of 22 August 1997 p. 1928.

⁸⁷² P696: report of the Joint Busovaca Commission dated 21 April (witness Morsink), para. D."

"425. The methods of attack and the scale of the crimes committed against the Muslim population or the edifices symbolising their culture sufficed to establish beyond reasonable doubt that the attack was aimed at the Muslim civilian population. [].

426. Witness Baggesen said of the attack on Ahmici: "We think that this operation, military operation against the civilian population was to scare them and to show what would happen to other villages and the Muslim inhabitants in other villages if they did not move out. So I think this was an example to show" ⁸⁹⁵, especially given what Ahmici symbolised for the Muslim community."

P.35. Evidence of a policy of reprisals.

A. Legal source/authority and evidence:

F Holstein and Twenty Three Others, UNWCC, LRTWC, vol. VIII, p. 22-23:

"According to the evidence presented by the prosecution, the accused took part in combined operations against members of the French resistance movement: The operations were decided upon and planned at a conference held at Dijon under the auspices of General Hederich, Feldkommandant and " Befehlshaber Nord-Ost Frankreich " (G.O.C., North-East, France), in June, 1944. Six of the accused attended in their respective commanding capacities : Irmisch, Hippe, Major, Hulf, Kruger and Verfurt. They were to provide the troops and issue instructions, and all had to take personal part in the operations at the head of their units. The conference decided that the French resistance movement in the area was to be suppressed and annihilated, and that severe measures were to be taken against them and the population " in reprisals " for their struggle against the occupying authorities or assistance given in this respect. In the light of some of the evidence, such measures were to consist in executing on the spot every member of the resistance, captured with arms, pursuant to Hitlers orders to kill all " terrorists " or " saboteurs "; in the burning down of three farms for every German soldier killed, and of one farm for every German soldier wounded. The events described by the Prosecution showed that, in carrying out the above instructions, the accused killed a large number of inhabitants, destroyed by fire many buildings in various localities, and pillaged property of the population."

7.1.2. Evidence that the appropriation was extensive;

A. Legal source/authority and evidence:

Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2005), p. 83:

"The appropriation of property must [] be extensive [for it to amount to an international crime]; an isolated act would not be enough to constitute a grave breach."

B. Evidentiary comment:

In the Tadić Case, the Appeals Chamber held that under article 3, read together with article 1 of the ICTY Statute, only serious violations of international law fall under the jurisdiction of the ICTY. (Tadic, Appeal Decision on Jurisdiction, ICTY, para.94.) The Appeals Chamber held that: "for instance, the fact of a combatant simply appropriating a loaf of bread in an occupied village would not amount to a "serious violation of international humanitarian law" although it may be regarded as falling foul of the basic principle laid down in Article 46, paragraph 1, of the Hague Regulations (and the corresponding rule of customary international law) whereby "private property must be respected" by any army occupying an enemy territory." (Tadic, Appeal Decision on Jurisdiction, para.94(iii).) The Appeals Chamber confirmed these findings in Kordic. (Kordic, Appeals Judgment, ICTY, para. 82.).

P.36. Evidence of repeated commission / pattern of thefts.

A. Legal source/authority and evidence:

"¹⁵²⁰. Witness U, T 2927-2928.

¹⁵²². Witness WW, T 7014-7021. When witness WW returned to her apartment around mid-June, she found it emptied of valuables, witness WW, T 7032. These testimonies are corroborated by witnesses participating in the attack on Mostar. Witness Falk Simang, a mercenary fighting in the KB, admitted that after the attack on Mostar KB soldiers drove BH Muslims out of their homes and took away all valuables they could carry, witness Falk Simang, T 3830. Witness Q, a Danish mercenary fighting with the Vinko [krobo ATG, described an instance when soldiers from his unit met at Mladen Naletilic headquarters and went to loot valuables in Muslim houses using civilian cars, witness Q, T 2375."

"620. Two reports by the Military Police in Mostar recount that, on 13 June 1993, Vinko Martinovic with 40 armed soldiers was expelling BH Muslims from their apartments in the DUM area on Mladen Naletilics orders. During these expulsions, apartments were robbed; the looting did not stop even after the police had inquired into the situation.¹⁵²³ Witness GG was dispossessed of his car and other belongings by six HVO soldiers between the end of May and middle-June 1993 in the DUM area.¹⁵²⁴ Exhibits PP 456.4 and PP 458.1 show protests from the ABiH 4th Corps Commander Arif Pacalic for large evictions of civilians from the DUM area on 13 and 14 June 1993; the first of these documents also reports robbery from ousted people.¹⁵²⁵ Witness P testified that in the days before 14 June 1993 violent evictions of BH Muslim residents in Mostar involved robbery of private property.¹⁵²⁶ A memorandum by an international observer states that evictions of BH Muslims on 12 and 13 June 1993 took place in upper middle-class neighbourhoods where the most desirable properties were to be found. In particular, on 13 June 1993 around 5 p.m., thirty soldiers evicted BH Muslims from their apartments, and proceeded to take away the name-plates on the doors.¹⁵²⁷ An ECMM report of 14 June 1993 also corroborates these findings, describing expulsions and dispossession of apartments in the DUM and Vatikana areas of Mostar.¹⁵²⁸"

"621. Between the end of July and 17 September 1993, Witness OO was repeatedly forced by the Vinko [krobo ATG, under the overall authority of Vinko Martinovic, to carry looted household appliances in areas of Mostar far away from the combat zones of the Bulevar.¹⁵²⁹ Witness F testified that in the period between July 1993 and March 1994 he was once forced to loot apartments in an area under the responsibility of Vinko Martinovic, loading the booty on trucks that soldiers would drive away. Vinko Martinovics soldiers were there and he recognised Zubac, a subordinate of Martinovic, acting as commander.¹⁵³⁰ According to witness II, Vinko Martinovic was never present during the plunder and it was his subordinates, who chose the prisoners.¹⁵³¹

622. Witness Sulejman Hadisalihovic, after being captured by the HVO on 25 June 1993,¹⁵³² was forced by HVO soldiers to loot apartments in Mostar together with other prisoners, mostly at night.¹⁵³³ This testimony is consistent with the statement of witness AC that Baja and other men were taking property away at night from BH Muslim apartments.¹⁵³⁴ Witness F was forced to loot apartments after June 1993, loading the booty on trucks that soldiers would drive away.¹⁵³⁵ Witness II was frequently ordered by soldiers from the Vinko [krobo ATG to loot abandoned apartments between the end of July and December 1993.¹⁵³⁶ Witness AB testified that he was forced to loot apartments many times from mid-August 1993 onwards;¹⁵³⁷ in one of these instances, Vinko Martinovic was present and, while not explicitly ordering the looting, did nothing to prevent or stop it.^1538"

"¹⁵²³. Exhibits PP 456.1, PP 456.2. The latter document explicitly defines the course of conduct by Vinko Martinovic as "pillage".

¹⁵²⁴. Witness GG, T 4757 (confidential).

¹⁵²⁵. Exhibits PP 456.4, PP 458.1.

¹⁵²⁶. Witness P, T 2280-2281 (confidential).

¹⁵²⁷. Exhibit PP 456.

¹⁵²⁸. Exhibit PP 456.3."

¹⁵²⁹. Witness OO, T 5943.

¹⁵³⁰. Witness F, T 1106-1108.

¹⁵³¹. Witness II, T 4962.

¹⁵³². Witness Sulejman Hadisalihovic, T 1222.

¹⁵³³. Witness Sulejman Hadisalihovic, T 1247.

¹⁵³⁴. Witness AC, T 7912.

¹⁵³⁵. Witness F, T 1106.

¹⁵³⁶. Witness II, T 4962.

¹⁵³⁷. Witness AB, T 7867. The Prosecution Final Brief, p 121, refers instead to witness ZZ.

¹⁵³⁸. Witness AB, T 7880-7881."

"627. With regard to the incidents occurring in the DUM area on 13 June 1993, it has been established that a large-scale operation of plunder, in connection with evictions, was carried out by soldiers acting under the supervision of Vinko Martinovic. Vinko Martinovic ordered the modalities of the evictions; such modalities included plunder of BH Muslim property in the neighbourhood. He organised his men during this operation and took no action even after police had inquired about the events.¹⁵⁴⁸ Vinko Martinovic is therefore responsible under Articles 3(e) and 7(1) of the Statute."

"1548. Exhibit PP 456.1."

"630. Plunder was carried out by HVO soldiers directly¹⁵⁵⁷ or forcing prisoners to do it for them.¹⁵⁵⁸ In this respect, Mladen Naletilic was giving specific orders as to the modalities of the operations.¹⁵⁵⁹"

"1557. Witness U, T 2927-2928; witness GG, T 4756.

1558. Witness Sulejman Hadzisalihovic, T 1246; Witness II, T 4962; witness CC, T 4423-4426.

1559. Exhibits PP 456.1, and PP 456.2. These exhibits are reports by two different officials at the Command of the HVO 1st Military Police Battalion in Mostar, alleging that soldiers participating in the operation were "Tutas men" acting on "Tutas orders." See also witness AC, T 7907-7911, stating that his unit, the Benko Penavic ATG under the authority of Mladen Naletilic, was often divided into groups, one of which had the task to ethnically cleanse a portion of Mostar. Specific instructions were given that plunder of Muslim property was part and parcel of these cleansing operations."

P.41. Evidence of stealing from detainees or prisoners of war.

A. Legal source/authority and evidence:

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 49:

"49. The factual basis attached to the guilty plea indicates that the accused stole money, watches, jewellery and other valuables from the detainees upon their arrival at Luka camp by threatening those who did not hand over all their possessions with death. The accused was sometimes accompanied. The Trial Chamber holds that these elements are sufficient to confirm the guilt of the accused on the charge of plunder."

B. Evidentiary comment:

In Celebici (Trial Judgment, ICTY, para. 1154), the tribunal held that the Prosecution: "faile[d] to demonstrate that any property taken from the detainees in the Celebici prison-camp was of sufficient monetary value for its unlawful appropriation to involve grave consequences for the victims."

P.42. Evidence of an organized seizure of property undertaken within the framework of a systematic economic exploitation of occupied territory.

A. Legal source/authority and evidence:

Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Lando, Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 590:

"590. In this connection, it is to be observed that the prohibition against the unjustified appropriation of public and private enemy property is general in scope, and extends both to acts of looting committed by individual soldiers for their private gain, and to the organized seizure of property undertaken within the framework of a systematic economic exploitation of occupied territory. []"

7.2. The destruction or appropriation was carried out wantonly.

7.2.1. The destruction was carried out wantonly.

A. Legal source/authority and evidence:

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 583:

"583. []The manner in which the destruction takes place and the discriminatory character of the destruction are factors relevant to the determination of the wantonness of the destruction".

B. Evidentiary comment:

The "wantonness" of the property destruction is a mental element which refers not only to the intensity or magnitude of destruction but also particularly reckless or negligent manner in which it is carried out. For this reason, the lack of military necessity for a particular destruction may also be an evidence of wantonness. Destruction which is carried out "wantonly" would usually be without known military goal and therefore not justified by military necessity. Mettraux comments that: "[T]wo sets of conduct are criminalized pursuant to this provision [of the crime of wanton destruction of cities, towns, or villages, or devastation not justified by military necessity]: (i) wanton destruction of cities, towns or villages, and (ii) devastation not justified by military necessity. The extent to which the two may be said to overlap is not fully elucidated, but it appears that the former would include the latter, whilst the reverse may not necessarily be true⁵. [] In addition, the destruction must have been wanton, that is, deliberate and without any justification (sans motifs in the French text)⁷." (Mettraux, International Crimes and the ad hoc Tribunals, p.92).

"⁵The Trial Chamber in Naletilic and Martinovic appears, however, to have merged the two into one (see Naletilic and Martinovic Trial Judgment, par 597, for instance, where it talks of wanton destruction not justified by military necessity.

⁷See eg. Naletilic and Martinovic Trial Judgment, par 583. The manner in which the destruction takes place and the discriminatory character of the destruction are factors relevant to the determination of the wantonness of the destruction".

According to Werle, the mental element for this crime is lower compared to Article 30 of the ICC Statute because the requirement of "wantonness" especially allows for recklessness in cases of international armed conflict. (Werle, Principles of International Criminal Law, para. 996, as held in Naletilic and Martinovic Trial judgment, para. 577).

Lastly, since military necessity does not justify destruction for purposes incompatible with basis precepts of international humanitarian law, acts not justified by military necessity include all unlawful acts. According to Fenrick, "[T]he offence is [] established [] [where that] [] destruction is not justified by military necessity. The expression "and carried out unlawfully and wantonly" is surplusage". (Fenrick in Triffterer (ed.), Commentary on the Rome Statyte of the International Criminal Court, article 8, at p. 183).

P.43. Evidence of the discriminatory character of the destruction.

A. Legal source/authority and evidence:

Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para 485:

"485. Based on the same evidence discussed in the section on unlawful attack on civilian objects, the Appeals Chamber is of the view that a reasonable trier of fact could have found that damage to only Muslim houses was of such nature that it could not have been caused by the fighting and was thus not justified by military necessity and that the fact that soldiers were carrying around petrol canisters shows that it was deliberate. The Appeals Chamber upholds the Trial Chambers finding that wanton destruction, Count 38 (Kordic) was established."

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 583, 586, 588:

"583. []The manner in which the destruction takes place and the discriminatory character of the destruction are factors relevant to the determination of the wantonness of the destruction"."

"586. The deliberate destruction of the houses in Sovici started on 18 April 1993 and continued until 23 April.¹⁴⁴⁸ In contrast to the shelling, the BH Muslim houses were now specifically targeted.¹⁴⁴⁹ Defence witness NN confirmed that BH Muslim houses were torched but denied that all houses were destroyed.¹⁴⁵⁰ A Report from the ECMM recounts that "during the fighting the HVO have systematically burn [sic] Muslim houses".¹⁴⁵¹ On 20 April 1993, the HVO was firing at Doljani.¹⁴⁵² The village was on fire and houses were burning.¹⁴⁵³ International observers visiting Doljani after the conflict reported that half of Doljani were destroyed.¹⁴⁵⁴ The hamlet of Kraj was destroyed by shelling.^1455"

"¹⁴⁴⁸ - Witness W, T 3180-3181; witness C testified that the houses were being set on fire on approximately 21 or 22 April 1993, witness C, T 862; witness X, T 3327; witness JJ, T 5004; exhibit PP 357 (confidential).
¹⁴⁴⁹ - Witness W testified "Can you tell the Chamber, please, what was the condition of the houses in Sovici when you passed through the village at that time? A. But I was passing by Croat houses all the time. Q. Well, what was the condition of those houses? A. Well, naturally like today. Nobody ever touched them, not a bullet nor anything else" witness W, T 3179-3181.
¹⁴⁵⁰ - Defence witness NN, T 12900, 12994.
¹⁴⁵¹ - Exhibit PP 344.
¹⁴⁵² - Exhibit PP 928, pp 74, 75,77.
¹⁴⁵³ - Witness RR, T 6441-6459, while being taken from Orlovac to Krcine, saw the village on fire.
¹⁴⁵⁴ - Witness JJ, T 5008; exhibit PP 357 (confidential).
¹⁴⁵⁵ - Witness C, T 857."

"588.The deliberate destruction of houses in Doljani occurred on 21 and 22 April 1993 and, as in Sovici, only BH Muslim houses were targeted.^1456"

"¹⁴⁵⁶ - Witness Falk Simang testified that KB set to fire all BH Muslim houses in Doljani after the death of Mario Hrkac (Cikota), witness Falk Simang, T 3809-3810. See also Rados Diary, exhibit PP 928, pp 78-79, where it is stated that after the death of Cikota on 20 April 1993, Tuta (Mladen Naletilic) ordered all Muslim houses in Doljani to be burnt down and that this continued at least until 22 April 1993."

Prosecutor v. Tihomir Blaskic, Case No. It-95-14-T3, Judgement (TC), 3 March 2000, para. 418:

"⁸⁶⁰ P242, "Report on inter-ethnic violence in Vitez, Busovaca and Zenica in April 1993", Annex N to ECMM H/S 720, 15 May 1993. Meeting with the Centre for Human Rights in Zenica, p. N-2.

⁸⁶¹ P184, p. 5, para. 20.

⁸⁶² - Witnesses Abdullah Ahmic, PT p. 3768; M, PT p. 4410; Elvir Ahmic, PT p. 3255-3256.

⁸⁶⁴ PT of 1 October 1997 p. 3136.

⁸⁶⁵ Witness Nura Pezer, PT pp. 3883-3884.

⁸⁶⁷ Witness Morsink, PT pp. 9900-9901.

⁸⁶⁸ Witness Morsink, PT pp. 9901-9902.

⁸⁶⁹ Witness Watters, PT pp. 3602-3605.

⁸⁷⁰ Witness Baggesen, PT of 22 August 1997 p. 1928.

⁸⁷² P696: report of the Joint Busovaca Commission dated 21 April (witness Morsink), para. D."

P.44. Evidence that the destruction was part of a policy of reprisals.

P.44.1. Evidence of instructions given to burn houses in reprisal against a resistance movement.

A. Legal source/authority and evidence:

F Holstein and Twenty Three Others, UNWCC, LRTWC, vol. VIII, p. 22-23:

"According to the evidence presented by the prosecution, the accused took part in combined operations against members of the French resistance movement: The operations were decided upon and planned at a conference held at Dijon under the auspices of General Hederich, Feldkommandant and " Befehlshaber Nord-Ost Frankreich " (G.O.C., North-East, France), in June, 1944. Six of the accused attended in their respective commanding capacities : Irmisch, Hippe, Major, Hulf, Kruger and Verfurt. They were to provide the troops and issue instructions, and all had to take personal part in the operations at the head of their units. The conference decided that the French resistance movement in the area was to be suppressed and annihilated, and that severe measures were to be taken against them and the population " in reprisals " for their struggle against the occupying authorities or assistance given in this respect. In the light of some of the evidence, such measures were to consist in executing on the spot every member of the resistance, captured with arms, pursuant to Hitlers orders to kill all "terrorists" or "saboteurs "; in the burning down of three farms for every German soldier killed, and of one farm for every German soldier wounded. The events described by the Prosecution showed that, in carrying out the above instructions, the accused killed a large number of inhabitants, destroyed by fire many buildings in various localities, and pillaged property of the population."

P.45. Evidence that the destruction aimed at creating terror.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 600:

7.2.2. The appropriation was carried out wantonly.

A. Legal source/authority and evidence:

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 583:

"583. []The manner in which the destruction takes place and the discriminatory character of the destruction are factors relevant to the determination of the wantonness of the destruction".

B. Evidentiary comment:

The "wantonness" of the property destruction is a mental element which refers not only to the intensity or magnitude of destruction but also particularly reckless or negligent manner in which it is carried out. For this reason, the lack of military necessity for a particular destruction may also be an evidence of wantonness. Destruction which is carried out "wantonly" would perforce be without known military goal and therefore not justified by military necessity. Mettraux comments that: "[T]wo sets of conduct are criminalized pursuant to this provision [of the crime of wanton destruction of cities, towns, or villages, or devastation not justified by military necessity]: (i) wanton destruction of cities, towns or villages, and (ii) devastation not justified by military necessity. The extent to which the two may be said to overlap is not fully elucidated, but it appears that the former would include the latter, whilst the reverse may not necessarily be true⁵. [] In addition, the destruction must have been wanton, that is, deliberate and without any justification (sans motifs in the French text)⁷." (Mettraux, International Crimes and the ad hoc Tribunals, p.92).

According to Werle, the mental element for this crime is lower compared to Article 30 of the ICC Statute because the requirement of "wantonness" especially allows for recklessness. (Werle, Principles of International Criminal Law, para. 996 as held in Naletilic and Martinovic Trial judgment, para. 577).

Lastly, since military necessity does not justify appropriation for purposes incompatible with basis precepts of international humanitarian law, acts not justified by military necessity include all unlawful acts. According to Fenrick, "[T]he offence is [] established [] [where that] [] destruction is not justified by military necessity. The expression "and carried out unlawfully and wantonly" is surplusage". (Fenrick in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, article 8, at p. 183).

P.46. Evidence of the appropriation by military forces after an attack on a village.

P.46.1. Evidence that military forces came to a village in trucks and tractors and carried away property belonging to the civilians who lived in the village.

A. Legal source/authority and evidence:

Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, paras. 559, 576:

"559. The Trial Chamber relied on the testimony of Witness TW01 (based on transcripts from the Blaskic trial), which stated that the HVO "came in trucks, on tractors, and they plundered the lower part of the village, taking away everything they could at the time"⁷⁷⁷, later being aided by civilians "who carried, on their backs and wheelbarrows, valuable things."⁷⁷⁸

"⁷⁷⁷.Blaskic,T.9270.
⁷⁷⁸. Blaskic, T. 9270."

"576. The Trial Chamber relied on Witness TW12⁸¹⁹ who testified that he: "saw cars and buses being taken away or trucks, if somebody had them. [He] saw looting and they just took all those things that they could take away right now and right there. And they were talking to each other saying, Take this now and leave the rest here. We will come back later and take the other stuff. And they took the stuff to Brnjaci."⁸²⁰

"⁸¹⁹. Based on transcripts from the Blaskic trial.
⁸²⁰. Blaskic, T. 9532."

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 621:

"621. The Trial Chamber is satisfied that Bosnian Serb attacks upon Pudin Han, Prhovo, and Crljeni were also accompanied with the looting of valuables, including electronic devices, vehicles, furniture, money and jewelry.¹⁵⁷⁷ During the looting, the perpetrators would intentionally damage the houses by tearing drapes and breaking the windows.¹⁵⁷⁸ Bosnian Serb soldiers, Bosnian Serb civilians and the Bosnian Serb police participated in the looting.¹⁵⁷⁹ The looting of houses in the municipality of Kljuc "were not isolated acts. These were acts by obedients who plundered, and making a certain gain they distributed the booty to the leaders [...] There [wasnt] a house from which they didn't steal something ranging from furniture [to] cars."¹⁵⁸⁰ No measures were taken to prevent the looting.¹⁵⁸¹"

"¹⁵⁷⁷. Ajiz Becic, ex. P549, 92bis statement, 02109337-02109338; Bajro Hadzic, ex. P552, 92bis statement , 00521142; Samir Dedic, T. 10440-10442; BT-26, T. 9186 (closed session).

¹⁵⁷⁸. Ajiz Becic, ex. P549, 92bis statement, 02109338.

¹⁵⁷⁹. Nisvet Ticevic, T. 10752-10754 ; See, e.g., ex. P1046, "Report of Public Security Station of Kljuc on the crimes committed in the municipality from the outbreak of the armed uprising on 27 May 1992." It provides: "There has lately been widespread looting of Muslim houses" and "Information collected through intelligence work reveals that the perpetrators were in uniform, that is, they were military persons outside the authority of the SJB. However, because of wartime conditions, military security organs seldom disclose the identity of perpetrators, and punish such acts by sending them to the first front line. Such crimes are reported to the station, which simply does not know how to deal with them."

¹⁵⁸⁰. Muhamed Filipovic, T. 9537.

¹⁵⁸¹. Nisvet Ticevic, T. 10756; ex . P660, "Report from the 1st KK Command to the Serbian Republic of BiH Army Main Staff dated 4 June 1992", signed for General Momir Talic, which provides: " The Corps Command is taking all available measures to prevent various forms of crime , especially the looting of material goods."

P.47. Evidence of appropriation through use of force/duress.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 605, 613:

"605. The Trial Chamber is further satisfied that, during the period relevant to the Indictment, there were many incidents in Banja Luka of non-Serbs being forced to either sign over their property ¹⁵²⁴ or exchange their property for property in Croatia.¹⁵²⁵ An agency was set up by the authorities of Banja Luka specifically to facilitate these exchanges.¹⁵²⁶ The SDS publicly announced that non-Serb owned shops and businesses would be transferred to returning Bosnian Serb soldiers as a reward.¹⁵²⁷ Bosnian Serb families moved into apartments belonging to non-Serbs who had left Banja Luka.¹⁵²⁸ Some people applied to exchange their apartments for apartments in Zagreb or Rijeka.¹⁵²⁹ In one example, a non-Serb was forced to exchange his house for just 100 German marks.¹⁵³⁰

"¹⁵²⁴. BT-20, T. 5255 (closed session ).

¹⁵²⁵. Muharem Krzic, T. 1484-1485 .

¹⁵²⁶. Muharem Krzic, T. 1484-1485 .

¹⁵²⁷. Muharem Krzic, T. 1483; BT- 22, T. 4436.

¹⁵²⁸. BT-20, T. 5241 (closed session); ex. P763 (under seal).

¹⁵²⁹. BT-9, T. 3445 (closed session )."

"613. Non-Serbs were forced to hand over their property, either by exchanging it with Bosnian Serbs who were coming to Bosanski Petrovac or by leaving it to the SerBiH.¹⁵⁵² In fact, actual exchanges seldom took place: non-Serbs transferred their property in exchange for nothing.¹⁵⁵³ However, some families that left for Bihac acquired Bosnian Serb property in exchange.¹⁵⁵⁴ The Trial Chamber is not satisfied that documents showing the sale of property belonging to non-Serbs are reliable, as the evidence shows that such transfers were always occasioned by force.¹⁵⁵⁵"

"¹⁵⁵². Ahmet Hidic, T. 16277-16283 ; Midho Druzic, T. 16805-16812.; ex. P1844, "Decision of the Petrovac Municipal Assembly", dated 3 August 1992, providing that for citizens of Muslim nationality "the commission will establish who can leave the Petrovac Municipality and the condition will be for them to exchange property or give it to the state, that is, to the Serbian Municipality of Petrovac."

¹⁵⁵³. Ahmet Hidic, T. 16277-16283 .

¹⁵⁵⁴. Ahmet Hidic, T. 16347. See , e.g., ex. P1869, "Crisis Staff minutes of 2 June 1992", which provide: "It has been decided that all Muslims and Croats, who so wish, be enabled to evacuated from the territory of Autonomous Region Krajina, but only under the condition that the Serbs outside the Serbian autonomous regions also be allowed to evacuate to the territory of the Serbian Republic of Bosnia and Herzegovina that is the Autonomous Region Krajina. In this way, the organised exchange of population would be carried out, that is its evacuation from one part of the former Socialist Republic of Bosnia to the other []".

¹⁵⁵⁵. Ex. P1846, "Document containing a number of contracts concerning the transfer of movable and immovable property belonging to Muslim citizens of Petrovac to the Petrovac Municipal Assembly"; Ahmet Hidic, T. 16277-16283."

Krupp Trial, UNWCC, LRTWC, Vol X, p 73:

"It was alleged by the Prosecution that these acts of plunder and spoliation were carried out in consequence of a deliberate design and policy on behalf of the German Government. The territories occupied by Germany had been exploited in a ruthless way far beyond the needs of the army of occupation and in disregard of the needs of the local economy, and were out of proportion to the resources of the occupied territories.

The accused were charged with having participated extensively in the formulation and execution of the foregoing plans, policies and acts of spoliation and plunder, by seeking and securing possession through duress, in derogation of the rights of the owners, of valuable properties in the territory occupied by Germany for themselves, for Krupp and for enterprises owned, controlled and influenced by them, by exploiting properties in occupied territories, by abuse, destruction and removal of such property, by taking possession of machinery, equipment, raw materials and other property."

P Rust, UNWCC, LRTWC, vol IX, p. 70:

"It was alleged by the Prosecution that in September, 1944, a local inhabitant, Marcel Schmitt, was ordered and forced by the accused to supply horses and vehicles with which he had to carry German ammunition and that he was compelled to repair German military bicycles, motor-cycles and electrical installations. It was also alleged that several other French civilians had been subjected to the same treatment, and that the acts of requisitioning were illegally effected in that no receipts were delivered to the owners of the horses and vehicles."

P.47.1. Evidence of threatening death.

A. Legal source/authority and evidence:

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 49:

"49. The factual basis attached to the guilty plea indicates that the accused stole money, watches, jewellery and other valuables from the detainees upon their arrival at Luka camp by threatening those who did not hand over all their possessions with death. [] The Trial Chamber holds that these elements are sufficient to confirm the guilt of the accused on the charge of plunder."

P.47.2. Evidence of forcing a transfer of property.

P.47.3. Evidence of abducting.

P.47.4. Evidence of killing.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 612:

"612. In June 1992, Bosnian Muslim shops and business premises in the town of Bosanski Petrovac and the surrounding area were destroyed by Bosnian Serb forces.¹⁵⁴⁹ Organised groups looted Bosnian Muslim property, including cars, money and other valuables.¹⁵⁵⁰ On occasion, when Bosnian Muslims refused to hand over their money, a family member would be killed or a child abducted. The municipal Crisis Staff ordered the arrest of the men perpetrating these acts on 26 May 1992.¹⁵⁵¹"

"¹⁵⁴⁹. Ahmet Hidic, T. 16251-16254 . See, e.g., ex. P186, "Report prepared the Service for General Administration , Social Services, Information and Professional Services in 1997", recording the total amount of destruction in Bosanski Petrovac during the war.

¹⁵⁵⁰. Ahmet Hidic, T. 16251-16254 .

¹⁵⁵¹. Jovo Radojko, T. 20111-20112 ."

P.48. Evidence of violence in the looting.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 621:

"¹⁵⁷⁷. Ajiz Becic, ex. P549, 92bis statement, 02109337-02109338; Bajro Hadzic, ex. P552, 92bis statement , 00521142; Samir Dedic, T. 10440-10442; BT-26, T. 9186 (closed session).

¹⁵⁷⁸. Ajiz Becic, ex. P549, 92bis statement, 02109338.

¹⁵⁸⁰. Muhamed Filipovic, T. 9537.

P.49. Evidence that the appropriation was on the basis that such civilian belonged to a particular ethnic group.

A. Legal source/authority and evidence:

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 701:

"701. The Chamber has already found that plunder was committed in Mostar after the attack of 9 May 1993 and that it formed part of a widespread and systematic attack on the BH Muslim population. Mladen Naletilić was found responsibly for plunder in Mostar as a violation of the laws and customs of war with command responsibility. The plunder was carried out on a discriminatory basis as only the property of BH Muslims was targeted. Mladen Naletilic knew that his subordinates carried out the plunder with the intent to discriminate. The Chamber is satisfied that Mladen Naletili} is responsible for persecution under Article 7(3) of the Statute."

P.50. Evidence that the appropriations aim was to create terror.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 600: